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38. Should the court admit the expert's testimony?
At trial, the manufacturer has called as an expert witness a product safety engineer, who testifies that the manufacturer retained him for a fee to test identical mowers and, if his opinion was helpful, to testify in the case. The expert then testifies that he did test the mowers, and that the blade, as designed and installed by the manufacturer, could not fly off in the manner claimed by the plaintiff. Assume that the expert has used a reliable method for reaching his conclusion.
A plaintiff sued the manufacturer of his lawn mower, alleging that, as the result of a design defect, he was injured when the mower's blade flew off after striking a sprinkler head in the lawn.
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A is incorrect. An opinion is not objectionable solely because it embraces an ultimate issue. However, in a criminal case, an expert witness must not state an opinion about whether the defendant is guilty or innocent. The ultimate issue prohibition was abolished because a jury is not bound by an expert's testimony, and may disregard the opinion.
B is incorrect. Fact witnesses may be reimbursed for expenses incurred and time lost in connection with the litigation but may not be paid a fee for the fact of testifying (or not testifying) or for the substance of the testimony. In this case, the expert was paid for his services, performing testing. He was not paid to give a specific opinion. He was asked to testify based on the findings of his testing which were favorable to the manufacturer.
D is incorrect. A plaintiff is not entitled to notice and an opportunity to participate in the testing process.